Press Note - Law Commission’s recommendations on the Judges’ (Inquiry) Bill, 2005
The Law Commission of India forwarded
its 195th Report on
‘the Judges’ (Inquiry) Bill, 2005’ to the Government of India on 31st
January 2006 and it was tabled in Parliament during its
Budget Session 2006. By a reference dated 2nd November 2005
the Minister of Law and Justice had asked the Commission to study and suggest
on the proposed draft of the “Judges (Inquiry) Bill, 2005 prepared by the
Law Ministry which deals with the procedures for removal of Judges of the
Supreme Court and High Courts. The Commission forwarded its report in a
record period of three months.
The Law Commission has examined the
proposed draft of the Judges (Inquiry) Bill, 2005 as per the law declared by the Supreme Court in its
judgments in relation to Articles 121,
124 and 217 of the Constitution of India.
Chapter XXI contains the summary
of recommendations altogether. Some
of the major recommendations of the Commission are as under:
(A) Imposition of ‘minor measures’
held constitutional in other countries even though not provided in the Constitution:
The Law Commission recommended that
there should be a provision in the proposed Bill of 2005 investing the Judicial
Council with power, in a complaint
procedure, to itself impose minor measures where the proved misbehaviour or
incapacity does not warrant removal. Such minor measures would include
(i) issuing advisories, (ii) request for retirement, (iii) stoppage
of assignment of judicial work for a limited time (iv) warning, (v) censure
or admonition (public or private). Of course, in the case of a reference by
the Speaker/Chairman on a Motion for removal, the Judicial Council cannot
impose or recommend any ‘minor measures’.
(C) Judicial Council consisting
only of Judges, as in the Bill of 2005, is a norm in
most countries:
The Law Commission was of the view
that the draft Bill of 2005 proposed that
the National Judicial Council should consist of five senior members of the
judiciary to take a correct and proper
stand.
(C) Composition of Judicial
Council to be modified in certain cases:
When the Judicial Council is conducting
investigation or inquiry into allegations against the Judges of the Supreme
Court (in a complaint procedure) or against the said Judges or the Chief Justice
of India (in a reference procedure), the Judicial Council should not consist
of the senior Chief Justices of the High Courts. All the members of the Council
should be Judges of the Supreme Court.
(D) Withdrawal of judicial work pending
proceedings (validity of section 21 of the Bill) and withdrawal as a ‘minor
measure’. The Law Commission
has recommended that one of the minor
measures that can be imposed by the Council is ‘withdrawal of judicial work
for a limited period’. That will be valid.
(E) Appeal to Supreme Court to be
provided:
As laid down by the Supreme Court
in Justice V. Ramaswami’s cases, the order of removal of a Judge, if
passed under the 1968 Act by the President after reference to the Judges’
Committee and its recommendation, can be challenged on the judicial side.
In order to preclude such a challenge under Article 226 of the Constitution
in the High Court and in view of the judgment of the Supreme Court in L.Chandra Kumar’s case that Article
226 is part of the basic structure of the Constitution, it is necessary to
incorporate a provision for appeal to the Supreme Court against (i) the orders of removal passed by the President in
the case of a complaint procedure or reference procedure and (ii) the orders
of Judicial Council imposing ‘minor measures’ in a complaint procedure.
The Law Commission has recommended
in the Report that there are several other clauses in the proposed Bill of
2005, which require to be either amended or incorporated. Important among
these are:
A clear distinction has to be drawn
between a ‘reference procedure’ as envisaged in the 1968 Act and the ‘complaint
procedure’ as recommended in the Bill of 2005. A new definition of these terms
has been proposed.
The Bill of 2005 uses the word `investigation,
`scrutiny’ while the title of the 1968 Act uses the word `inquiry’. Article
124 (4) uses the words `investigation and proof’. The Law Commission is of
the view that there should be a clear delineation of the different stages
of the entire process of removal of a judge on a ‘complaint procedure’. The
procedure being quasi-criminal as held by the Justice Sawant Committee, the
different stages viz., the complaint/allegations, preliminary investigation
by the Judicial Council, framing of charges on the basis of the allegations,
and inquiry should be clearly spelt out in the proposed Bill of 2005.
The manner in which this should be done has been indicated in detail
in the Report.
(a)There is need to incorporate a
definition of the words ‘misbehaviour’ and ‘incapacity’ so as to take in
serious types of misbehaviour as also deviant or bad behaviour. In all
countries, a Judge cannot be guilty of misbehaviour if the allegations relate
to the merits of a judgment or order. In the case of Justice Chase of
U.S. in 1805, even impeachment failed on this ground. (b)Violation of the Code
of Conduct should also be treated as misbehaviour. So far as publication of
Code of Conduct is concerned, the Judicial Council should publish the same in
the Gazette of India and until such publication the ‘Restatement of Values of
Judicial Life’ as per the Resolution of the Supreme Court dated May 7, 1997
shall hold good. The Council should also be delegated with power to amend the
Code of Conduct from time to time.
There should be a definition of
the word `proved’ as `proof beyond reasonable doubt’ (as observed by the
Justice Sawant Committee). In this context the word `substantiated’ used in the
Bill has to be omitted.
As regards the complaint
procedure, a `whistleblower’s provision’ has to be incorporated in the proposed
Bill of 2005. If a complainant under the ‘complaint procedure’ is apprehensive
of reprisals, he should have the right to request the Counsel that his
name be kept confidential. The
recommendations made by the Law Commission for protection of ‘whistle blowers’
in its 179th Report, are relevant in this context and may be
adopted.
There should be confidentiality of
the entire complaint proceedings, starting from the complaint, till ‘minor
measures’ are imposed by the Council or in case the Council recommends removal
till its recommendation as to removal is placed in Parliament. The complainant
and the witnesses should also be
prohibited from giving publicity about the allegations in the complaint, name of
the complainant or witness or the name of the Judge. Any breach of
confidentiality should amount to an offence. It is further recommended that the
above provisions as to confidentiality, shall be notwithstanding anything
contained in the Right to Information Act, 2005.
The proposed Bill of 2005 should
be allowed to take into consideration allegations of `misbehaviour’ which
would have occurred before the commencement of the new law but that it should
not relate to a period beyond two years from the date of commencement of the
new law.
Dated, the March 29, 2006
Law Commission of India
SMK/ls
(Release ID :16863)